Is Filming with a ‘Model Helicopter’ Legal?

Everybody is talking about using “drones” for aerial film and video, but not everyone understands what that entails.

By Tom Inglesby

Photos courtesy of Jordan Klein Jr. and Chris Odom

At NAB, Cinegear and probably every studio you care to name, people in the industry are talking about the great work someone they know is doing with a lightweight cine camera, like a GoPro Hero, attached to a multi-rotor model helicopter like the DJI Phantom or Freefly Cinestar. Major shoots, it seems, are using these “multi-rotor aerial camera platforms,” as Freefly Systems calls them, to get those great aerial shots you just can’t get with a “real” helicopter.

These are small, multi-rotor aerial vehicles that come in a wide variety of configurations. Sporting four, six, eight or even more rotors on shafts that extend from a center platform, they often are referred to by the name octocopters (eight rotors) or hexacopters (six rotors); unfortunately, the general public has been conditioned to call them “drones.”

But the term drone has a built-in negative connotation; the first response to hearing the term often is, “Oh, those flying rocket launchers that rain down Hellfire missiles on evildoers!” Try to overcome that image by saying, “No, a radio-controlled model helicopter; no missiles, just a camera.”

At NAB, we asked several vendors showing their multi-rotor craft if they were legal for filming in the United States. All admitted that they weren’t – usually with a quick, “But they soon will be, no question about it. So buy now, learn to fly them for the best quality results and be ready when the laws are changed.” Whoa, you mean all those YouTube videos are – careful now – illegal?

Well, the answer, my friend, is blowing in the wind (apologies, Bob Dylan). There are rules, you see, on how, when, where and why you can fly these relatively inexpensive camera platforms. On the other hand, the rules don’t seem to be enforced in every case, so people get away with a lot that is against the law.

Radio-controlled model helicopters have been around for decades. The local hobby shop probably has dozens of versions from single-rotor Bell Jet Ranger look-a-likes to the heavy-lifting octocopter configuration. They incorporate a series of electric motors run from a rechargeable/replaceable battery pack, a radio receiver to control the pitch and speed of the rotors, and a ground control unit for the operator.

What the cinema version adds, besides the camera, of course, is two-way communications, gimbal mounting, longer battery life, and many other items to make the copter fly better, longer, and with greater stability for the camera.

The hobby shop associate might, if you ask, let you know there are rules for flying your new model aircraft. Rules? For a toy? Come on, you must be kidding! No, not kidding and neither is the FAA, the arbitrators of those rules.

In its simplest form, radio-controlled model aircraft cannot be flown within five miles of an active airport, cannot fly higher than 400 feet, cannot fly over a congested area or large groups of people, and must remain in visual range of the operator. That’s the simple stuff.

Where filmmakers get into trouble isn’t just flying a camera around taking pictures, it’s using those pictures. Besides the rules about where you can fly, there are additional rules regarding the commercial use of the results. The FAA has been working on commercial use rules since 2007 and expects to have them ready by September, 2015. In the meantime, the use of unmanned aerial vehicles (UAVs) for commercial filming is almost impossible to do legally.

The court case that brought this to the media’s attention was when a videographer, Raphael Pirker, was fined for using his ‘copter to shoot a commercial. In 2011, Pirker was asked to shoot aerial footage of the University of Virginia for a promotional video. Although representatives of the university, including safety officers, followed Pirker around to make sure university regulations were followed, when the resulting video was posted online he was fined $10,000 for not following FAA regulations.

Later, a National Transportation Safety Board judge threw out the fine with the argument that the FAA doesn’t have the legal authority to impose or enforce its ban on small UAVs. The FAA immediately appealed, and on its website puts it this way: “There are no shades of gray in FAA regulations. Anyone who wants to fly an aircraft, manned or unmanned, in U.S. airspace needs some level of FAA approval.” By the way, that airspace starts at ground level, not 400 feet up.

The NTSB court’s ruling was stayed and the FAA has since received a waiver request from several aerial photo and video production companies asking for regulatory exemptions that would allow the industry to use UAVs with FAA approval.

According to the FAA itself, “If the exemptions are granted, there could be tangible economic benefits as the agency begins to address the demand for commercial UAS operations. However, all the associated safety issues must be carefully considered to make sure any hazards are appropriately mitigated. The petitioner must still obtain operational approval from the FAA.”

The Motion Picture Association of America (MPAA) facilitated the exemption requests on behalf of their membership. The firms that filed the petitions are all independent aerial cinematography professionals who collectively developed the exemption requests as a requirement to satisfy the safety and public interest concerns of the FAA, MPAA and the public at large.

As of now, almost all of the big production companies and studios such as Warner Bros., NBC-Universal, Fox, and Sony have a ban on using UAVs on their USA production sets because of the legality and liability issues.

“Our customers are concerned about the legalities of the industry, but the urgency of ‘he is doing it, so I need to be doing it’ has spread throughout the film industry,” acknowledges Adam Gibson, business development manager at Ctrl.Me Robotics, Venice Beach, Calif. “It is even more because of the enormous cost benefits for a film’s budget. When it comes to saving money with technology, regulations are finding the slow lane to evolve as UAVs continue to innovate and cut costs for budgets of all types. As film jobs find their way elsewhere, it is great to have the tools to drive costs down to keep more production in California where it belongs.”

But the UAV isn’t a perfect platform. “As an aerial DP, I have not yet had a shoot that could be accomplished by a drone,” claims Patrick Longman of Active Camera Systems, a traditional helicopter-using aerial photography firm in Florida. “Some of the drawbacks that I don’t see highlighted in the mostly glowing reviews by media are the limitations on camera, lens, stability, speed, distance and flight time. They also don’t ever speak about the success rate of using these drones, or the fact that many shots require them to be run through stabilization software which can only do so much.”

He adds, “As a company owner who has millions invested in the latest aerial systems and cameras, I won’t be offering UAV systems until they are legal to operate commercially and I can have the proper insurance and safe guards in place. Like any tool, I think they will find their place in our industry, but right now it is a very limited tool that is not legal.”

Jordan “Jordy” Klein Jr. is the owner and president of Jordan Klein Film & Video in Summerfield, Fla., north of Orlando. In early 2012, Klein teamed up with Mark “Ninja” Lynch, an Emmy award-winning DP who had spent a decade on the reality show Survivor, and they started Xcam Aerials. Xcam Aerials specializes in extreme environment remote controlled aerial cinematography and still imagery.

Xcam has many different remotely controlled aircraft in its arsenal. The cameras used include GoPro Hero, Panasonic GH2/3, Black Magic Pocket camera, and the Red Epic. “The workhorse of the fleet is our Red Epic-equipped octocopter,” says Klein. “We have several of these aircraft armed with state-of-the-art brushless gimbals. These Octos can carry a Red Epic camera with a Cooke S4 Prime lens and our custom FIZ (focus/iris/zoom) controller for 12min of continuous flight.”

Klein believes in always having two of everything while on a movie set. “I learned a long time ago that if you got one, you got none,” he says. “I think the biggest problem with many companies that provide radio-controlled aircraft for the entertainment industry is they don’t realize how much money is being spent on a movie set every second. If you do not show up totally prepared for any situation, then you are setting yourself and the entire production up for failure.”

Xcam is currently building a new aircraft that will accommodate the ARRI Alexa and gimbals to accommodate two Red Epic cameras with 3D cinematography capability. “With the right tools and the right people, we can accomplish incredible imagery in a short period of time,” boasts Klein.

Another UAV user is Richard Steinberger of Bailey, Colo. “I am a commercial photographer specializing in marine, architecture and hospitality markets. I’ve been involved in UAVs for over five years. I use a German Oktokopter system, but have different systems with the sole purpose of aerial photography.”

Steinberger continues, “The technology is here, it is widely available and there is no getting the genie back in the bottle. The unfortunate part is that there are people who will be using them in a reckless manner, if not downright illegally. Almost every day I hear about UAVs that crash into people or buildings, or have near misses with various commercial aircraft. One of the biggest concerns we have is that a few idiots out there will ruin it for those of us who are responsible.”

The FAA learns about most violations only from reports in the media, tips from rival businesses, or when companies film their drone flights and post them on YouTube. The latter is like sticking your middle finger up and waving at the FAA, but hundreds of people are doing it.

Lots of these people were operating under the radar (pun intended) until Pirker. “Now everyone is jumping on the bandwagon and who can blame them really?” says Steinberger. “The technology is incredible and is moving faster than the FAA can write their regulations. Obviously, I don’t think that UAVs can take the place of a regular helicopter for filmmaking just yet, but they are certainly able to get footage and images that would have been impossible with traditional tools. So yes, they definitely have a place in the industry and won’t be going away anytime soon.”

Having said that, he then cautions, “I think there most definitely needs to be regulation for using them in a safe and responsible manner. There should be minimum qualification for professional/commercial operators and some sort of licensing. Otherwise, there isn’t any accountability. I don’t think it has to be as extreme as a private pilot license, but it should be better than what it is now.”

Chris Odom, director of operations, Firefly Media Group in St. Petersburg, Fla., cautions, “Using these machines in this capacity requires a ton of specialized knowledge, primarily in the art of balancing the gimbal and camera package chosen for the project. The most valuable time spent are the days in pre-production making sure the gimbal and camera are stable and vibration free. Related to pre-pro, another huge factor to ensure success is being able to sit down with the director or DP and discuss the camera movements and desired results. So many projects I have worked on seem to think that we can just bring the machine on set, fire it up, and get exactly what they want. Sometimes, it just doesn’t work that way.”

Planning the flights, camera movements and expectations with the camera department is always the number-one priority. “I cannot stress enough how important it is for the pilot and camera operator to be on the same page,” warns Odom. “However, if a DP or director considers us a part of the camera department and understands the requirements and planning needed, we can produce results that are not attainable in any other way.”

The cons of working with a UAV team come mostly from not having worked with one before and understanding how the team works and the limitation of the machines. “I have worked on numerous productions where no one has really considered the pilot and camera op as part of the camera department,” comments Odom. “We are usually booked for one or two days and expected to show up and know exactly what is needed, the vision of the director or DP. Yet one simple thing, communication, is the best way to getting the footage required for the project.”

On the business side of things, finding insurance is extremely difficult. “We were fortunate enough to find Transport Risk out of Colorado,” recalls Odom. “Before getting insured, I had to go through an interview to determine my skill level. For the past year-and-a-half, my company has been insured with them for liability, and aircraft hull and camera damage. In our particular case, we carry $1 million in liability, $16,500 for the hull, and $7,500 for the camera. When a particular project requires higher limits, I can make a phone call and increase on a per-project basis. While not exactly cheap, it is a necessary part of being a professional.”

One of the most active critics of UAV operations in US airspace—and not just related to their use in filming, is a 35-year veteran helicopter pilot and aerial coordinator who specializes in motion picture and TV work. Meet Paul H. Barth, owner of Camera Copters, and listen to his recent personal encounter with a UAV.

“I was flying my helicopter with a Cineflex “Gyro” Stab camera system, filming a live event, the Red Bull Wings of Life Run, with hundreds of people on the ground below. We were up pre-dawn for the start, flying over a roadway in South Florida, when I saw a light in the distance. I thought it was another aircraft coming towards me, but wasn’t sure. I was flying at an altitude of 400 feet, where helicopters normally operate, and my cameraman and I identified it as a UAV. It came right at us and passed underneath, way too close.”

He continues, “I immediately turned the helicopter around to follow it with our camera so I could know where it was and avoid a possible collision. To make a long story short, we videotaped the whole situation, right down to the point where the owner/operator landed it in his driveway. If that UAV had hit us, it could have possibly taken us down right on top of hundreds of people. Almost any foreign object hitting the tail rotor, main rotor, or even windshield of a helicopter in flight could cause it to crash.”

A near miss, while flying any aircraft, is an unnerving experience. “A lot of drone guys think helicopter filming guys are just crying that they’re taking our business, they’re going to entirely replace us. That’s a bunch of baloney. They’ll never entirely replace what we can do and in many cases do better, with a real helicopter, a real aerial camera system, and a professional film pilot and cameraman. Think about the camera payloads that we carry, they weigh hundreds of pounds, and those UAVs aren’t going to replace that any time soon.”

Barth adds, “I have to have a motion picture manual, I have to have a special waiver from the FAA, I have to have a certified aircraft, I have to be a certified commercial pilot, I have to maintain currency, I have to maintain an FAA medical, I have to carry $20 million in aviation liability insurance. I have to do all those things to legally fly over a film set to do a film job when there are people below me. But those UAV guys don’t have to do any of that right now.”

To insure that UAV filming is done safely there have to be proper rules, regulation, training, licensing and accountability. “Even I realize that at some point, when the dust settles and the rules and regulations are in place, I will most likely embrace this technology and become a UAS owner/operator myself, admits Barth. “But in the meantime, if they are going to fly and film with their UAV, they better have a good lawyer nearby.”